Mokaya (Deceased) v Nyareru & another (Environment and Land Case 90 of 2007) [2026] KEELC 4215 (KLR) (2 July 2026) (Ruling)

Mokaya (Deceased) v Nyareru & another (Environment and Land Case 90 of 2007) [2026] KEELC 4215 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4215 (KLR) Republic of Kenya In the Environment and Land Court at Kisii Environment and Land Case 90 of 2007 AA Omollo, J July 2, 2026 Between Beldina Mokaya (Deceased) Plaintiff and Robert Ombasu Nyareru 1st Defendant County Government of Kisii 2nd Defendant Ruling 1.The applicant in this motion brought under the provisions of Order 12 and 24 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act is asking for the following orders:a.The honourable court be pleased to grant leave to the Applicant to be substituted as the plaintiff in lieu of Beldina Mokaya, now deceased.b.Consequently, to granting the leave, the applicant be deemed as the plaintiff suing for and on behalf of the deceased plaintiff.c.The court be pleased to vary rescind and or set asidethe orders made on 6th February, 2024 dismissing the plaintiff’s suit for non-attendance.d.Costs of the application be provided for. 2.The Notice of Motion is supported by the affidavit of Margaret Bochaberi Mokaya, who deposes that she has obtained a limited grant of letters of administration ad litem in respect of the estate of the deceased plaintiff, Beldina Mokaya, Therefore, she has the requisite legal capacity to seek substitution and continue with the proceedings on behalf of the estate. She states that leave of the court is necessary before she can be substituted as the plaintiff and expresses her willingness to prosecute the suit to its logical conclusion. 3.The applicant attributes the failure to attend court by the deceased plaintiff due to her prolonged ill-health, stating that from about 2019 the deceased suffered from a terminal illness which necessitated frequent hospital admissions, continuous medical treatment and specialist care until her death on 4 January 2025. According to the applicant, the deceased's deteriorating health rendered her incapable of attending court or executing a power of attorney to enable another person to prosecute the case on her behalf. 4.To support those assertions, the applicant annexes a death certificate confirming that the deceased died on 4 January 2025, together with numerous medical records, laboratory reports, hospital receipts and a medical report from her treating nephrologist. The medical documents indicate that the deceased, then aged about 95 years, was under treatment for chronic kidney disease, right atrophic kidney, systemic hypertension, trigeminal neuralgia and asthma, and was described by her consultant physician as extremely geriatric and frail owing to chronic illness. 5.She contends that part of the delay arose because the parties were engaged in negotiations aimed at an amicable settlement at the instance of the defendants, during which period the matter was repeatedly mentioned in court to confirm progress on the negotiations and compliance by the defendants. She therefore maintains that there was sufficient cause for the failure to proceed with the hearing. 6.It is further deposed that the dismissal of the suit without a hearing on the merits has gravely prejudiced the estate of the deceased, particularly in relation to the suit property. The applicant argues that unless the dismissal order is set aside and she is substituted as the plaintiff, the estate will be denied an opportunity to ventilate its claim and will effectively be condemned unheard. She asserts that the respondents will suffer no prejudice if the orders sought are granted. On that basis, she urges the court, in the interests of justice, to set aside the dismissal order, allow her substitution as the plaintiff and reinstate the suit for hearing on its merits. 7.The Respondents opposed the application through a replying affidavit sworn by Anne Githinji, the County Attorney of the County Government of Kisii, on 17th October 2025. She deponed that the application was misconceived, incompetent and an abuse of the court process. She stated that the suit had been dismissed on 6th February 2024 for want of non-attendance after the Applicant failed to attend court on the date fixed for hearing. 8.The deponent further averred that the Applicant was duly served with the hearing notice and was therefore aware of the hearing date but failed to attend court. She maintained that the Applicant had not demonstrated any sufficient cause to warrant the setting aside of the dismissal order. According to the Respondents, the suit property had, by the time of filing the application, already been transferred to the County Government of Kisii pursuant to Gazette Notice No. 7977 of 30th July 2014, vesting the property in the County Government. 9.It was also deponed that the Applicant had taken no meaningful steps to prosecute the suit for an inordinate period exceeding fourteen years and had only moved the court after the dismissal order had been made. The Respondents contended that the Applicant's conduct demonstrated a lack of diligence and that reinstating the suit would occasion prejudice to them. She urges the court to dismiss the application with costs, arguing that the Applicant had failed to satisfy the legal threshold for setting aside the dismissal order. 10.The applicant filed submissions dated 17th April 2026 in support of her motion which I have read and considered. Going by the age of this case, there is no dispute that it ought to have been prosecuted before it was dismissed in February 2024. I have perused the record and noted that as of 18th October, 2021 the Defendant had not fully complied with order 11. They served the amended defence and counter-claim was served on 9th December, 2021. 11.The first hearing was fixed for 12th July, 2022, but the matter could not proceed because the deceased plaintiff was admitted to hospital. The applicant attributes the deceased's non-attendance on 6th February 2024 to old age and ill-health. I have reviewed the previous court records and observed that the delay in prosecuting the case was not solely attributable to the applicant. 12.Order 17, Rule 2(2) provides that if cause is shown to the satisfaction of the court, it may make such orders as it thinks fit to ensure the expeditious hearing of the suit. 13.The Respondent argues that as at the time the suit was filed, the suit property had been transferred to it vide gazette notice No. 7977 of 30th July 2014. This is an argument that forms part of its defence to the suit, not a defence to the application for reinstatement of a suit. 14.Therefore, having considered the reasons given for failing to attend court on 6th February 2024 and the previous court proceedings, I am persuaded to exercise my discretion under sections 1A and 3A to give the Plaintiff an opportunity to prosecute her case. Any inconvenience to the Respondent shall be compensated by awarding the Respondent the costs of this application. 15.In conclusion, I allow the application dated 15th September, 2025. The matter is substituted, as the Applicant is substituted as the administrator of the estate of the deceased plaintiff; the order of dismissal made on 6th February, 2024 be and is hereby set aside, and the suit be reinstated to be heard on the merits. The costs of the application to the Respondent. The case to be fixed for hearing forthwith. DATED, SIGNED AND DELIVERED AT KISII THIS 2ND DAY OF JULY, 2026.A. OMOLLOJUDGE